USCIS Changes EB-5 Investors Form I-829 To Extend Permanent Resident Status

The U.S. Citizenship and Immigration Services (USCIS) Form I-829 Petition by Entrepreneur to Remove Conditions on Permanent Resident Status is for immigrant entrepreneurs to petition to remove the conditions on their, and certain dependents', permanent resident status which they obtained through the EB-5 immigrant visa program based on investment in a new commercial enterprise. The petitioner must submit the Form I-829 within the 90-day period immediately preceding the second anniversary of obtaining conditional permanent resident status. Should the EB-5 investor fails to file this petition with USCIS within the 90-day period immediately preceding the second anniversary of obtaining conditional permanent resident status, USCIS will terminate their conditional permanent resident status. If USCIS accepts the I-829 petition before the EB-5 investor's conditional permanent resident status is terminated, then the EB-5 investor's conditional permanent resident status will automatically be extended for one year.

The I-797 receipt notice for Form I-829 is important because it serves as the only evidence of the EB-5 investor's continued lawful status once their conditional two-year permanent residence card expires. USCIS' previous I-797 notice language was confusing for many EB-5 investors as it did not state the date from which the permanent residence card was extended, and it directed applicants to follow up after 5 months, despite a current processing time for Form I-829 petitions of approximately 28 months.

Form I-829 I-797 Receipt Notice Changes Clarify Green Card Validity Is Extended One Year

USCIS does not mail another I-829 receipt notice after one year has passed, and an investor's permanent residence card is not automatically extended again after the first year. Therefore, EB-5 investors must attend an InfoPass appointment at a local USCIS Field Office to request a Form I-551 stamp be placed in their passport, which provides temporary evidence of lawful permanent residence. Unfortunately, USCIS Field Offices across the U.S. do not have a single, common operating procedure. Each office has demonstrated local variations on practices and procedures, and this holds true for the issuance of a Form I-551 stamp. Some USCIS Field Offices issue I-551 stamps with a one-year validity to EB-5 investors, others restrict the validity period of the stamp to only a few months, and others restrict the ability of EB-5 investors to apply for the stamp to certain periods of time before expiration of the initial extension.

A Form I-829 Receipt Pending One Year Must Obtain An I-551 Stamp

The new language on the I-829 receipt notice helps provide some clarity on the process for I-829 applicants to extend their permanent residence cards if their petition remains pending for more than one year. Generally, EB-5 investors should anticipate the ability to obtain an I-551 stamps only within the 30 days prior to expiration, based on the new I-797 receipt notice language, which states, "[t]hirty (30) days before the expiration of this extension, if you have not been notified by USCIS of a decision on your petition, please contact the field office nearest to where you are living for further documentation for employment and/or travel purposes." Each USCIS Field Office may interpret this language differently, so attorneys and/or applicants may seek clarification on this process with the local field office prior to the 30-day window, particularly considering frequent challenges experienced by applicants in obtaining an InfoPass appointment.

The New I-797 Receipt Notice

New I-797 Receipt

The Old I-797 Receipt Notice for Form I-829

Old I-797 Receipt

While we are hopeful that processing times for Form I-829 petitions will be reduced, USCIS should institute policy changes in the meantime to allow EB-5 investors to more easily extend their permanent residence cards.